Business Brief: Claiming Holiday Whilst Off Sick

Nick Hine, partner at law firm Thomas Eggar, responds to your employment law questions:

I have been off long term sick and read somewhere that I might be entitled to holiday pay as a result. What is the situation?
-- Name witheld
There have been a number of cases recently where this situation has been discussed. In fact the European Court has now given guidance on this area and the position is as follows.

Even if you are off sick your statutory right to holiday continues to accrue. It is up to the member states to decide whether an employee can take their annual leave during a period of sick leave. If you have been prevented from taking your sick leave during the leave year then you must be allowed to carry it over but you cannot be paid in lieu of holiday unless your employment is terminating.

You should therefore be entitled to state that you wish to have your holiday pay for the year in which you have been off sick.

A further case has also now confirmed that where pre-arranged annual leave coincides with a period of sick leave i.e. if a worker goes off sick whilst on annual leave then you must have the option to be able to designate an alternative period to take the annual leave.

Note that this only applies to the statutory holiday entitlement under the Working Time Regulations but it may not apply to any contractual entitlement over and above the statutory entitlement. Employers would do well to review their policies to ensure that these new rights under these cases are not abused.

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